Constitutional

Contours of

Distributed

OwnershipAMJAD BHATTI

NATIONAL TECHNICAL ADVISOR

STRENGTHENING PARTICIPATORY FEDERALISM AND DECENTRALIZATION

DEMOCRATIC GOVERNANCE, UNIT, UNDP

Organisation of the paper

Two Parts

(a) the historical context

(b) contemporary concerns

Pakistan: The infamous

three A’s

Absence of constitution

Abrogation of constitution

Adulteration of constitution

Triangular Analysis

Constitutional failure led to the breakdown of

democratic politics

Breakdown of democratic politics led to failure of governance

Failure of governance led to development

deficits

Paradigm Shift

CoD

Feb 2008 Elections

PCCR

RR Model of Consensus Building

Cleansing of Constitution

11 May 2013 - Transition from one democratic

dispensation to other: first test of Constitutional

Reforms

Understanding 18th

Amendment

LG as a Military Legacy:

1959, 1979, 2001

Military governments installed all the three systems of local government in Pakistan

First local body elections were held in the absence of any other forum of the elected government at provincial or federal levels

Local government systems were incubated by the federal governments bypassing the provincial tier of governance

Local government systems were deployed as a ‘ladder of legitimacy’ by successive military governments in Pakistan

Local governments systems were used as a tool to extend central authority of the federation to the district and local levels which, according to some studies, led to over-centralized governance structures in Pakistan

CoD on LG

“Local bodies election will be held on party basis

through provincial election commissions in

respective provinces and constitutional protection will be given to the local bodies to

make them autonomous and answerable to their

respective assemblies as well as to the people

through regular courts of law.”

Article 140 (A): Adopted by 18th Amends

“Each Province shall, by law, establish a local

government system and devolve political,

administrative, and financial responsibility and authority to the elected representatives of the

local governments.”

Definitions

Responsibility: The state of being answerable for

an obligation, and includes judgment, skill, ability

and capacity. The obligation to answer for an act done, and to repair or to otherwise make

restitution for an injury it may have caused. A duty

or obligation to satisfactorily perform or complete

a task (assigned by someone, or created by one's

own promise or circumstances) that one must

fulfill, and which has a consequent penalty for

failure.

Authority can be delegated, responsibility cannot.

Authority:

Institutionalized and legal power inherent in a particular job, function, or position that is meant to enable its holder to successfully carry out his or her responsibilities .

Power that is delegated formally. It includes a right to command a situation, commit resources, give orders and expect them to be obeyed, it is always accompanied by an equal responsibility for one's actions or a failure to act.

An agency or body created by a government to perform a specific function, such as environment management, power generation, or tax collection.

Right to exercise powers; to implement and enforce laws; to exact obedience; to command; to judge. Control over; jurisdiction.

Devolution:

The transfer or transition from one person to

another of a right, liability, title, estate, or office. Delegation or passing of authority, duty, power,

and/or right by succession or transfer.

Explanations

The Article 140(A) defines jurisdiction of local governments and identifies four areas of devolution at the local level:

Devolution of political responsibility and authority: The political aspect corresponds to the legislative, regulative and policy related responsibilities and authorities to be devolved to the local government(s).

Devolution of administrative responsibility and authority: The administrative aspect relates to executive responsibilities and authorities in the course of every-day functioning of the local government(s).

Devolution of financial responsibility and authority: The fiscal component relates to the revenue and

expenditure assignments of the local government(s).

Devolution of responsibility and authority to the

elected representatives of local government: This component clearly establishes that the devolution

of responsibilities and authorities of all the

functions should be assigned to the elected

representatives of the local government.

Core Questions

Tiers

Sectors

Subjects

Elected non-elected interface

Question of the moment:

Distributed ownership?

Does the existing or ongoing legislation on local

government comply with the intent of Article 140-A?

If yes, how?

If not, why not?

Thank you!